TaxTMI 
TaxTMI 
2008 (12) TMI 804
X X X X Extracts X X X X
X X X X Extracts X X X X
.... Camel Collection with for registration 2. 597845 Camel Trophy Adventure Wear 3. 597842 Camel Collection with the device (square) 4. 597840 Camel Collection with the device strip 5. 597837 Camel Collection with Device (neck label) 6. 597848 Camel for registration of Trade Mark "Camel Collection" in respect of "all types of readymade garments, including foot wear and head gear" before the Assistant Registrar of Trade Marks, Chennai and the applications were ordered to be advertised in the Trade Mark Journal 1206 (s) dated 08.09.1999. The applicants for convenience sake will be hereinafter referred to as 'the respondents'. M/s. World Wide Brand Inc, (herein after referred to as "the Petitioner") a corporation and existing under the law of the State of Delaware, United States of America, filed a notice of opposition along with a request on TM-44. The objections were mainly. (A) The petitioner carry on an established international business as merchants of, clothing, suits, coats, vests, trousers, shirts, sweaters, belts, neckties, scarves, hats, caps, foot wear and head gear. (B) In connection with world wide busine....
X X X X Extracts X X X X
X X X X Extracts X X X X
.... that they had earned reputation and goodwill was denied. By virtue of long and continuous extensive use since the year 1992, the respondents' trade mark is being adopted to distinguish their goods and it is distinctive of their goods only and with none else. Hence, the respondents contended that the applications were well within the provisions of The Trade Marks and Merchandise Act, 1958. 4. The petitioner filed evidence in support of the opposition by way of an affidavit. The respondents also filed evidence in support of their applications by way of an affidavit. The Assistant Registrar of Trade Marks on consideration of the rival claims including the evidence had disallowed the opposition and ordered to proceed for the registration of the applications filed by the respondents herein. 5. Questioning the said order, the petitioner preferred O.A. Nos. 15-20/2005-TM/CH before the Intellectual Property appellate Tribunal (in short, 'the appellate Board'). The appellate Board having considered the various documents filed by the petitioner, found that the petitioner had registered the camel brand in various forms either as a word mark or with a device mark with various co....
X X X X Extracts X X X X
X X X X Extracts X X X X
....lysing the documents produced by the petitioner with regard to an agreement entered into by the petitioner with Dornbusch & Co, permitting the licensee to manufacture shirts, sweat/T-Shirts, knitwear, etc., the appellate Board found that in as much as the territory for the licensee is mentioned as Benelux, Switzerland, Denmark, and Israel and the licence agreement was in respect of use of trade mark set forth in Schedule-A of the licensed articles and in connection with the manufacture, advertisement, permission, sale and distribution thereof in the territory described therein. Hence, the said licence agreement said to have been entered into by the petitioner with Dornbusch & Co will not establish the manufacture of garment with trade mark 'camel' by the respondent through the licensee Dornbusch & co. Having considered the entire issue, the appellate Board had rejected all the objections and had ultimately dismissed the appeals. Challenging the said order the present civil revision petitions. 8. We have heard Mr.Habibullah Basha, learned senior Counsel appearing for the petitioner and Mr. T.V. Ramanujam, learned senior Counsel appearing for the first respondent. 9. Before....
X X X X Extracts X X X X
X X X X Extracts X X X X
....uires it, if there is any misdirection in law or a view of fact taken in the teeth of preponderance of evidence. But the High Court should decline to exercise its jurisdiction under Articles 226 and 277 of the Constitution to look into the fact in the absence of clear and cut down reasons where the question depends upon the appreciation of evidence. The High Court also should not interfere with a finding within the jurisdiction of the inferior tribunal except where the findings are perverse and not based on any material evidence or it resulted in manifest injustice. Except to the limited extent indicated above, the High Court has no jurisdiction. In our opinion therefore, in the facts and circumstances of this case on the question that the High Court has sought to interfere, it is manifest that the High Court has gone into questions which depended upon appreciation of evidence and indeed the very fact that the learned trial Judge came to one conclusion and the Appellate Bench came to another conclusion is indication of the position that two views were possible in this case. In preferring one view to another of factual appreciation of evidence, the High Court transgressed its limits....
X X X X Extracts X X X X
X X X X Extracts X X X X
....y and only to keep subordinate court and tribunals within the bounds of their authority and not to correct mere errors. Further, where the statute bans the exercise of revisional powers it would require very exceptional circumstances to warrant interference under Article 227 of the Constitution of India since the power of superintendence was not meant to circumvent statutory law. It is settled law that the jurisdiction under Article 227 could not be exercised "as the cloak of an appeal in disguise". 19. In Surya Dev Rai v. Ram Chander Rai AIR2003SC3044 , the Apex Court has held that exercise of power under Article 226 is available only to correct the error committed by the Court or the authority and the error should be self-evidence. The Apex Court had also cautioned that such an error which needs to be established by lengthy and complicated arguments or by indulging in a long-drawn process of reasoning, cannot possibly be an error available for correction by writ of certiorari. 20. In Ranjeet Singh v. Ravi Prakash AIR2004SC3892 the Apex Court has held that unless, the High Court finds patent error in the order of the tribunal or appellate board, it would not be proper ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....s is concerned, the petitioner have filed Exs.A to J before the Registering Authority and the appellate Board. As we have held, that even when this Court does not act as an appellate authority, while exercising the power under Article 227 of the Constitution of India and also taking note of the fact that the scope of such revisional power is very limited, in exercise of such power this Court would not be entitled to either re-appreciate or consider any material placed before this Court when those materials were not placed and were not subjected to scrutiny by way of appreciation either before the registering authority or before the appellate board as the case may be. Hence, reconsideration of the evidence would necessarily be restricted only to Exs.A to J. In exercise of power under Article 226/227 of the Constitution, the High Court would be justified in not looking into any documents which were not produced before the Registrar of Trade Marks or before the Appellate Board and are sought to be produced for the first time before this Court. 25. We have carefully considered the submissions made by the respective Counsel and also perused the documents. Excepting the fact that those ....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndent and (2) transborder reputation and consequently passing off, we are inclined to refer to the order of the appellate Board as to the discussions on the above aspects. We once again make it clear that unless the findings of the appellate Board are totally perverse and without any material evidence or certain findings which are given contrary to the admitted facts, the High Court cannot interfere with that order. 27. As far as the dishonest adoption is concerned, the respondents had conceived and adopted the trade mark "Camel Collection" along with device of "Camel, and Camel Trophy" during the year 1992 and has been doing extensive and continuous business using the above trade mark to the tune of several course, as has been found by the Registrar of the Trade Marks and the appellate Board. It is argued by Mr.Habibullah Basha, learned senior Counsel that a licence agreement was entered into between the petitioner and the German licensee M/s. Dornbusch & Co and M/s. Seidensticker group of companies even during the year 1992. While considering the said argument advanced, the appellate Board had factually found that: Even assuming that the licensee of the app....
X X X X Extracts X X X X
X X X X Extracts X X X X
....re examination. It is well settled that the effect of an alleged admission depends upon the circumstances in which it was made. We are unable to go into these questions until they have been fully and properly investigated by an authority empowered to consider them. 30. In the wake of the findings of the appellate Board and for our own reasons, we are not in agreement with the submission of the petitioner in regard to dishonest adoption. 31. As regards the submission relating to the transborder reputation is concerned, the petitioner had contended that the camel brand cigarettes were available in duty free shops and they have produced the catalogue of the year 1993-1994. While considering the above, the appellate Board had observed that "the plea of the appellant that the mark "CAMEL" is world wide is also not made out and further except the vague statement that the camel brand cigarettes are available in the duty free shops, there is absolutely no evidence to establish that the said mark is so well-known in India or the same attained the transborder reputation." 32. Law on transborder reputation may be stated as follows: Even when the goods are manufactured....